Tue May 13, 2014

Texas To Hold First Execution Since Botched Oklahoma Case

If he is executed today, Robert James Campbell will be the first prisoner killed by capital punishment in the U.S. since a botched execution occurred in Oklahoma two weeks ago. (Texas Department of Criminal Justice/AP Photo)

If his scheduled execution is carried out today, Robert James Campbell will be the first prisoner killed by capital punishment in the U.S. since a botched execution occurred in Oklahoma two weeks ago. (Texas Department of Criminal Justice/AP Photo)

Today, the state of Texas is scheduled to execute 41-year old Robert James Campbell for the murder and rape of a 20-year old woman in 1991.

If carried out, Campbell will be the first prisoner killed by capital punishment in the U.S. since a botched execution occurred in Oklahoma two weeks ago. However, Campbell’s defense team is still trying to appeal his deal using two very distinct arguments.

NPR correspondent Wade Goodwyn joins Here & Now’s Robin Young to discuss these arguments, and to talk about why this particular execution is both controversial and significant.

I'm Robin Young. It's HERE AND NOW. At 6 p.m. local time, Texas is scheduled to execute 41-year-old Robert James Campbell. He was sentenced in 1992 for raping 20-year-old Alexandra Rendon and then, after telling her to run, shooting her to death. If the execution goes through, Campbell will be the first prisoner put to death in this country since the botched execution in Oklahoma two weeks ago.

There have been a series of problems in executions, with states forced to use a cocktail of drugs after foreign manufacturers refused to sell them the drug previously used. And Campbell's lawyers are still trying to stop tonight's execution through appeal.

NPR's Wade Goodwyn joins us from Texas. And Wade, in that Oklahoma case I mentioned, a new three-drug cocktail was used. What does Texas use?

WADE GOODWYN, BYLINE: Well, I think I first should say that the Texas Department of Corrections considers itself among the best in the world when it comes to carrying out executions. In fact other states send its correction staff to Texas to watch and learn how we do it. Texas doesn't use a drug cocktail, just the single drug phenobarbital. So instead of one drug to put the prisoner to sleep, another to induce coma and stop breathing and finally a third to stop the heart, phenobarbital is a general anesthetic which induces unconsciousness, stops the prisoner from breathing, and the lack of oxygen kills them.

And why this is important is the single drug makes it more difficult for the prison to make mistakes. These are not intensive care unit doctors administering these drugs, not doctors at all. So simplicity is important. I would not be surprised to see Oklahoma jettison its protocol in favor of Texas after their investigation comes to a close.

YOUNG: There were, though, you tell us, questions about how Texas originally obtained this drug.

GOODWYN: Because the supply of it is being strangled by European manufacturers who don't want their medical drugs used to execute prisoners. I mean, they sell to hospitals, not to prison. So now Texas sometimes will disguise what is going on by telling the drug manufacturers their drugs should be shipped to Huntsville Unit Hospital. Huntsville is where Texas executes the prisoners. But the hospital was shut down 30 years ago.

So now Texas is getting its drugs from a compounding pharmacy outside of Houston. It's not regulated by the FDA. And the process is shrouded in secrecy. Once the supply began to run out, the official supply, some states, including Texas and Oklahoma, passed laws saying we're not going to say where the drugs come from anymore or what's in them.

YOUNG: So isn't this an argument that Campbell's defense attorneys are using, that there is some secrecy around how Texas is getting its drugs and what's in them?

GOODWYN: It's a matter of access to the courts. If the prisoner's lawyers don't know exactly what the drug's makeup is, it becomes harder to argue that their client is being subjected to cruel and unusual punishment. They've got to resort to descriptions, you know, other prisoners' reactions when they were executed.

And I think this is the crux of the matter. You know, it's a process which by law is shrouded in secrecy, and it could undermine a prisoner's constitutional rights to challenge in court their method of execution. In the Campbell case, federal Judge Keith Ellison urged the Fifth Circuit Court of Appeals to, quote, "reconsider its jurisprudence that seems to shield crucial elements of the execution process from open inquiry."

YOUNG: They're also saying that the state failed to disclose tests showing that Campbell has mental retardation.

GOODWYN: Yeah, they're arguing that prosecutors withheld information that Campbell was administered IQ tests in elementary school and upon his arrival on death row, which was in 1991, that showed him to be mentally retarded, using the legal language of the time. The U.S. Supreme Court has ruled it's unconstitutional to execute intellectually disabled prisoners, but the question of Campbell's mental capability, it's already been rejected by the courts, and as a rule the Fifth Circuit Court of Appeals has been very reluctant to get in the way of Texas executions.

YOUNG: Well, Wade, so the defense attorneys are appealing tonight's execution. And we know, you know, it goes right up to the last second. And the governor can give a stay. But how are people there in Texas reacting to questions about this execution?

GOODWYN: Well, I mean, I think what has happened in Oklahoma has raised kind of a national awareness in a way that hasn't been before about what's going on with the drugs and with the protocols. But I would say here in Texas, it's business as usual. I just don't see a lot of reaction. I mean, Texas kind of considers itself a breed apart when it comes to executions. I'm not sure what happened in Oklahoma is going to make much of a difference here.

YOUNG: And again, to remind people an inmate died of a heart attack 43 minutes after this cocktail of drug injections was administered. He reportedly rose up off the table, struggled, quite gruesome. You reported last week on ALL THINGS CONSIDERED. You said Oklahoma's going to investigate execution protocols.

Outside of Texas, do you think there'll be other investigations?

GOODWYN: It's hard to know. The thing that's made the biggest impact here in Texas are the scores of DNA exoneration, including a dozen men on death row. That slowed down the execution rate. I mean, you know, we used to execute prisoners, you know, as much as 50 a year. You know, now we're down to less than a dozen.

But when it comes to wider reflection about the protocols, I expect most states to consider that what's happened in Oklahoma to be Oklahoma's problem and leave it at that.